An attorney for former President Trump suggested the so-called “fake electors” scheme qualifies as an “official act,” which would prevent it from being prosecuted under the recent Supreme Court ruling on presidential immunity.
Trump attorney Will Scharf told CNN Monday night that some acts alleged in the former president’s federal election subversion indictment do constitute private conduct but the effort to put forth slates of alternate electors in 2020 from key battleground states is not one of them.
“We believe the assembly of those alternate slates of electors was an official act of the presidency,” Scharf said, noting the Supreme Court left that question for lower courts to decide.
The Supreme Court ruled Monday that core presidential powers are immune from criminal prosecution and that presidents are presumptively entitled to immunity for all official acts. They do not enjoy immunity for unofficial, or private, actions, the high court said.
In Trump’s federal election subversion case, the justices made clear that some allegations in the indictment fall squarely in his official duties, like meetings with Justice Department officials to investigate purported election fraud.
But allegations like the scheme to overturn the election results by putting forth slates of pro-Trump electors in seven key states requires further analysis at the district court level, they determined.
On that point, Justice Amy Coney Barrett broke with the majority, which she otherwise signed on to, writing that she sees “no plausible argument for barring prosecution of that alleged conduct.”
In his CNN interview Monday night, Scharf contended that once the official acts are stripped from Trump’s federal election subversion indictment, special counsel Jack Smith “doesn’t have a case.”
“I don’t think there’s sufficient private conduct here to support the indictment, to support the ongoing prosecution, and that’s what we’re going to be litigating in front of the district court now,” he said.